United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge
matter is before the Court on the Defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (§ 2255 Motion),
ECF No. 47.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
§ 2255 motion, and describes the initial review process:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
Jonathan Valentine pled guilty to Count I of the Indictment,
charging a violation of Title 18 U.S.C. § 1951
(“Hobbs Act” robbery). The Court accepted his
guilty plea and the plea agreement which provided for a
sentence of 120 months imprisonment pursuant to Federal Rule
of Criminal Procedure 11(c)(1)(C). ECF No. 29. In the plea
agreement, the Defendant also waived his right of appeal and
his right to pursue relief under 28 U.S.C. § 2255, with
limited exceptions including claims of ineffective assistance
Defendant was sentenced on December 10, 2018, to a term of
120 months imprisonment and three years of supervised
release. His sentence was substantially below the advisory
guideline range of 151 to 188 months incarceration, based
upon his Total Offense Level of 29 and Criminal History
Category VI. See Sentencing Recommendation, ECF No. 34.
Restitution in the amount of $1, 256.50 was also imposed, to
be paid jointly and severally with co-defendant Edward L.
Sherrod. Judgment was entered on December 11, 2018, and an
Amended Judgment correcting a clerical error was entered on
December 14, 2018. No. appeal was filed.
Defendant's § 2255 Motion is timely and it is his
first such motion. In the Motion, he raises four grounds for
relief, all based on alleged ineffective assistance of
counsel: (1) Failure to file a timely notice of appeal, (2)
Failure to file a motion to suppress Defendant's
statement to an FBI agent, because Defendant allegedly asked
that his attorney be present before he signed a
Miranda waiver, (3) Failure to challenge the
constitutionality of 18 U.S.C. § 1951(a), and (4)
Failure to file a motion to suppress Defendant's
statement to the FBI agent, because Defendant allegedly
requested the appointment of an attorney after he
signed the Miranda waiver. Because Grounds Two and Four are
closely interrelated, they will be addressed together.
establish ineffective assistance of counsel, the Defendant
must satisfy both prongs of the test articulated by the
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The performance prong
requires a showing that counsel performed outside the wide
range of reasonable professional assistance and made errors
so serious that counsel failed to function as the kind of
counsel guaranteed by the Sixth Amendment. Id. at
687-89. The prejudice prong requires a movant to demonstrate
that seriously deficient performance of counsel prejudiced
the defense. Id. at 687. “To establish
prejudice, the defendant must demonstrate a reasonable
probability that the result of the proceeding would have been
different, but for counsel's deficiency.”
United States v. Luke, 686 F.3d 600, 604 (8th Cir.
ONE: Counsel's Failure to File a Timely Notice of
Defendant's plea agreement, he waived his right of
appeal, with limited exceptions, including a claim of
ineffective assistance of counsel. ECF No. 29, Page ID 60-61.
At his plea hearing, he acknowledged under oath that he was
satisfied with the performance of his counsel, and that he
understood he was waiving his right of appeal in his plea
Defendant's “affidavit in support” of his
§ 2255 Motion, he contends that within fourteen days of
his sentencing he wrote a letter to his attorney requesting
that she file a notice of appeal. He states the letter was
“deemed filed when he handed it over to prison
authorities at Cass County Jail for forwarding to his
attorney.” ECF No. 48.
the Defendant's allegations, the Court cannot infer that
his attorney received any request to file a notice of appeal
within fourteen days of the date of the filing of the Amended
Judgment. Accordingly, the Defendant has not shown that, by
failing to file a notice of appeal within fourteen days of
the date of the Amended Judgment, counsel performed outside
the wide range of reasonable professional assistance or made
errors so serious that counsel failed to function as the kind
of counsel guaranteed by the Sixth Amendment. Further,
because the Defendant's grounds for appeal all concerned
allegations of ineffective assistance of counsel, the Court
cannot infer that the alleged deficient performance of
counsel in failing to file a notice of appeal in any way
caused him prejudice. See, e.g., U.S. v.
Spight, 817 F.3d 1099, 1103 (8th Cir. 2016)
(“'[A] claim of ineffective assistance of counsel
is generally not a basis for direct ...